Reporter’s Note: Comprehensive coverage of the incident, including video footage of the use of force by two police officers, can be found here.
The City of San Rafael continues to receive public backlash after announcing two weeks ago that a former police officer will conduct the investigation into a police use of force incident that sent a local gardener to the hospital with a broken nose and concussion.
In response to the fallout, Rob Epstein, San Rafael’s city attorney, issued a written statement on Sept. 16 to explain his decision to retain Paul Henry, a 27-year veteran of the Santa Rosa Police Department, as the investigator.
Epstein also revealed that the FBI has requested information about the use of force incident.
According to Epstein’s latest statement, he is overseeing Henry’s investigation and any potential disciplinary action taken against the police officers involved, which raises questions about whether the process will be fair and unbiased, as city officials have repeatedly promised.
The gardener’s attorney, Charles Dresow, wrote a letter to Epstein last week detailing his concerns about Henry’s ability to perform as a neutral investigator. Dresow’s confidence that the investigation will remain independent has further waned since he learned the city attorney will be in the driver’s seat.
“The lack of any non law enforcement related citizen oversight of a process where current police officers are being investigated by a former police officer – who was hired by the same city attorney now supervising the investigation – is troubling,” Dresow told the Pacific Sun in an interview.
Many Marin residents agree. Demonstrators took to the streets again on Sept. 16, for the third time in as many weeks, marching from the Canal area to City Hall in protest of what they say is the the city’s mismanagement of the investigation . Their message was clear – “No cops investigating cops.”
The full text of San Rafael City Attorney Rob Epstein’s statement issued on September 16:
“A recent police incident has received substantial public attention. Two San Rafael police officers used force during their July 27 arrest of a local man. The man alleged in court that the officers used excessive force and lied in their police reports. After reviewing the facts, the District Attorney’s office dismissed their case against the man and opened a criminal investigation of the officers. In addition, the FBI has contacted the City to request evidence related to the incident.
Members of our community have demanded that the officers be fired immediately.
I want to respond to their concerns. To legally be able to take any disciplinary action against the officers involved, the City must first follow a process set by law, known as the Public Safety Officers Procedural Bill of Rights (POBR). Under POBR, a claim of officer misconduct triggers a police disciplinary process, which begins with an Internal Affairs (“IA”) investigation. The City cannot lawfully impose any discipline without following the entire process.
Done correctly, the process will lead to a decision by the Police Chief whether to impose discipline on the officers. If he determines that discipline is appropriate — and yet the City makes a misstep in the process — an arbitrator could later reverse and undo the Chief’s decision.
To ensure a fair, impartial, and legally performed investigation, the City hired Paul Henry, an independent outside investigator. Mr. Henry is a retired Santa Rosa Police Department lieutenant who has conducted numerous similar IA investigations. Some have criticized this appointment, expressing a concern that a former cop will seek to protect the officers involved. They say the process is rigged.
I have been responsible for selecting the investigator and — as the elected City Attorney — will now oversee the investigation and disciplinary process to ensure its completeness and fairness. The City’s other elected officials — the Mayor and City Council — have no direct role in these proceedings.
The City is required to conduct a thorough, neutral, unbiased investigation. The City’s sole interests are in discovering the truth, conducting a lawful process, and ensuring that any potential disciplinary decisions — including, and up to, termination of any employee — withstand procedural challenges by the employee.
The IA investigation process is complex.
First, the investigator must determine all the written policies implicated by the incident, including the officers’ duties not to use excessive force and to be truthful in their reports. The investigator must also designate the scope of the investigation so they can make specific findings regarding whether the officers involved complied with the relevant established policies.
The investigator then reviews all physical evidence, including all videos, photographs, and police reports, and conducts taped interviews of all police personnel involved. The officers must answer the investigator’s questions. Any refusal to answer the investigator’s questions is itself grounds for termination.
The investigator provides their completed report to the Police Chief, who then decides and issues the level of discipline for each officer involved. Any officer subject to discipline is entitled to an internal City appeal, followed by their right to binding arbitration.
The binding arbitration tests the integrity of the IA investigation. The employee may seek to introduce any perceived irregularity in the investigation process. If the employee can persuade the arbitrator that the investigation was performed incorrectly in any respect, the employee may successfully argue that the City’s disciplinary decision should be reversed.
This is why the City appointed an experienced professional investigator. Any final disciplinary decisions must be able to stand up at arbitration so that those decisions will remain permanent.
The IA investigation is likely to take months. Many will be frustrated not to have a final decision immediately. When it is over, the City is committed to communicating with the public about all aspects of the investigation that it is legally permitted to disclose. The City is deeply interested in rebuilding trust with the community. Whatever the outcome of the investigation and disciplinary process — which many members of the community believe should be decided right now based on the video — the City is committed to obtaining a final result that is fair, unbiased, and binding on the officers involved.”